Nonprofits Win Contraceptive Mandate Appeal

The 8th U.S. Circuit Court of Appeals on Sept. 17 issued the first circuit court level victory for nonprofits challenging the contraceptive and abortifacient mandate. The ruling creates a split among the circuit courts, rocketing the chances of the Supreme Court taking one of the nonprofit cases.

The tworulings in related cases grant a preliminary injunction against the mandate to several plaintiffs, including Dordt College, Cornerstone University, Heartland Christian College (HCC), and a Christian addiction recovery program in Missouri called CNS Ministries.

Until these rulings, nonprofits challenging the mandate had a string of losses at the circuit level. Circuit courts have ruled against Priests for Life, the Michigan Catholic Conference, the Catholic Diocese of Nashville, East Texas Baptist University, Houston Baptist University, the Catholic Diocese of Beaumont, the Catholic Diocese of Fort Worth, the Diocese of Erie, the Diocese of Pittsburgh, Geneva College, Wheaton College, and the University of Notre Dame.

Most of those cases ended at the beginning of the legal inquiry, with courts ruling that the current mandate for employers to provide contraceptive and abortifacient coverage in their health insurance plans was not a substantial burden on the nonprofits’ religious exercise, even though the nonprofits thought it was.

The united three-judge panel of the 8th Circuit took a different path in a straightforward, unemotional opinion. The court ruled that if the religious groups considered the mandate a burden on their beliefs, it was. The 8th Circuit quoted the Supreme Court’s ruling in Burwell v. Hobby Lobby extensively to bolster its argument.

“CNS and HCC [two of the plaintiffs] face the same consequences for noncompliance as did the plaintiffs in Hobby Lobby,” Judge Roger Wollman wrote for the court.

The 8th Circuit emphasized that courts should not be deciding whether something is a substantial burden on religious exercise. Moral complicity is up to the nonprofit, not judges, the court said.

“Religious beliefs need not be ‘acceptable, logical, consistent, or comprehensible to others’ to deserve protection,” Wollman wrote. “The question here is not whether CNS and HCC have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage. Their affirmative answer to that question is not for us to dispute.”

The 8th Circuit also ruled that the government’s current accommodation for nonprofits did not fulfill the Religious Freedom Restoration Act’s requirement, where a morally burdensome regulation must use the “least restrictive means” of accomplishing its goal.

The current federal rule requires objecting nonprofits to send a form to the Department of Health and Human Services (HHS) asserting their objection and providing their insurance information so HHS can arrange drug coverage for their employees.

The 8th Circuit ruled that other methods would be less restrictive to nonprofits’ religious exercise, like providing the drugs to women at these nonprofits directly through the government or through healthcare exchanges.

Now the question is which nonprofit case the Supreme Court will choose to take. At the end of the month, the justices will have their first meeting of the new term to consider cases to hear. Already they have several appeals before them, including one from the Little Sisters of the Poor, which has as its advocate famed Supreme Court litigator Paul Clement.